FALLS CHURCH, Va. – The US Supreme Court will not hear an appeal from a Virginia school board saying it should not be held liable for the alleged sexual assault of a student by a classmate on a band tour.
The court on Monday dismissed the Fairfax County School Board’s appeal without comment. The case is now being heard in federal court in Alexandria, Virginia.
The case centered on whether a Title IX school system could be held liable for a single alleged assault in the absence of prior notification of an issue. Title IX is the federal law preventing sex discrimination.
The student, who says she was assaulted, identified only as Jane Doe, filed the lawsuit in 2018. She said a male Oakton High School classmate sexually assaulted her on a school bus during a band trip abroad in 2017.
In 2019, after a two-week trial, a civil jury acquitted the school system of wrongdoing. It turned out that the girl had indeed been attacked, but it said the school system had not received “actual notification” of the attack.
However, in 2021, the US 4th Circuit Court of Circuits reinstated the lawsuit with a 2-1 verdict. Majority opinion said it was clear the school system was aware of the attack because the girl herself told administrators she had been touched without her consent. However, a dissenting opinion concluded that the court ruling should stand because subsequent notification of an isolated, one-time incident did not provide the school district with a real opportunity to take preventive action.
The entire 4th Circuit then issued a 9-6 en banc opinion confirming that the lawsuit should be resumed. The majority of judges said that if school systems could not be held accountable for their response to a single incident, it would amount to giving them “a free rape.”
Dissenting judges said the majority opinion greatly expands school systems’ liability under Title IX.
The school board then petitioned the Supreme Court for a review, which was denied on Monday. Some progressive groups had criticized the board for promoting a legal theory that they said would limit the legal rights of victims of sexual assault.
In a statement, one of Jane Doe’s attorneys at Public Justice, a non-profit public interest legal group, said the Supreme Court was correct in dismissing the appeal.
“What a shame that the school board wasted taxpayers’ money by asking the Supreme Court to take positions that the Fourth Circuit and the Justice Department have called ‘absurd,'” said Alexandra Brodsky.
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Fairfax County Public Schools said in a statement that the decision “leaves these important legal issues unresolved. Fairfax County Public Schools asked the High Court to resolve these uncertainties because Congress never intended schools to be privately sued for monetary damages if everyone agreed the harassment was unforeseeable.”
The Supreme Court also on Monday declined to hear an appeal from the University of Toledo in a similar case.
If the Virginia retrial continues, it will start over, meaning Jane Doe will have to prove again that she was assaulted and also that the school system was notified.
Whether Doe was assaulted was a matter of debate at the original trial. The school system argued that she was ambivalent about her participation in the behavior and only became really upset when she learned the male student had a girlfriend.
Doe testified that she tried to keep the male student’s hands from groping her as they crouched under a blanket and at one point pulled her hand away from his genitals only for him to grab it and put it back.
She admitted she never told him “no” and didn’t try to get up and walk away. But she insisted she didn’t agree.
“It’s pretty easy. I never said ‘yes’ to him for doing this to me,” she testified.